authority granted by this Agreement, or otherwise performed on behalf of the
Company, if such member, such affiliate, or such Specified Agent, as applicable,
in good faith, determined that such course of conduct was in the best interests
of the Company. Each member shall look solely to the assets of the Company for
return of his, her or its investment, and if the property of the Company
remaining after the discharge of the debts and liabilities of the Company is
insufficient to return such investment, each member shall have no recourse
against the Company, the other members or their affiliates, except as expressly
provided herein; provided, however, that the foregoing shall not relieve any
member of any fiduciary duty or duty of fair dealing to the other members that
it may have under applicable law.
(b) In any threatened, pending or completed claim, action, suit or
proceeding to which a member, any of such member's affiliates, or any Specified
Agent was or is a party or is threatened to be made a party by reason of the
fact that such person is or was engaged in activities on behalf of the Company,
including without limitation any action or proceeding brought under the
Securities Act of 1933, as amended, against a member, any of such member's
affiliates, or any Specified Agent relating to the Company, the Company shall
indemnify and hold harmless the members, any such affiliates, and any such
Specified Agents against losses, damages, expenses (including attorneys' fees),
judgments and amounts paid in settlement actually and reasonably incurred by or
in connection with such claim, action, suit or proceeding; provided, however,
that none of the members, any of their affiliates or any Specified Agent shall
be indemnified for actions constituting bad faith, willful misconduct, or fraud.
Any act or omission by any member, any of such member's affiliates or any
Specified Agent, if done in reliance upon the opinion of independent legal
counsel or public accountants selected with reasonable care by such member, such
affiliate or such Specified Agent, as applicable, shall not constitute bad
faith, willful misconduct, or fraud on the part of such member, affiliate or
(c) The termination of any claim, action, suit or proceeding by
judgment, order or settlement shall not, of itself, create a presumption that
any act or failure to act by a member, such member's affiliate or any Specified
Agent constituted bad faith, willful misconduct or fraud under this Agreement.
(d) Any such indemnification under this Section 13 shall be recoverable
only out of the assets of the Company and not from the members.
SECTION 15. Miscellaneous.
(a) A member's limited liability company interest may be evidenced by a
certificate of limited liability company interest executed by the Manager or an
officer and in substantially the form attached hereto as Exhibit B (or in such
other form as the Manager may approve).
(b) The terms and provisions set forth in this Agreement may be
amended, and compliance with any term or provision set forth herein may be
waived, only by a written instrument executed by each member. No failure or
delay on the part of any member in exercising any right, power or privilege
granted hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or
further exercise thereof or the exercise of any other right, power or privilege